High Court Punjab-Haryana High Court

Smt. Mirdula Joshi vs State Of Haryana And Others on 10 December, 2008

Punjab-Haryana High Court
Smt. Mirdula Joshi vs State Of Haryana And Others on 10 December, 2008
     IN THE HIGH COURT OF PUNJAB AND HARYANA AT

                          CHANDIGARH

                     C.W.P. No. 11945 of 2008

             DATE OF DECISION: December 10, 2008

Smt. Mirdula Joshi

                                                        ...Petitioner

                               Versus

State of Haryana and others

                                                     ...Respondents

CORAM: HON'BLE MR. JUSTICE M.M. KUMAR

            HON'BLE MR. JUSTICE JORA SINGH


Present:    Mr. Babbar Bhan, Advocate,
            for the petitioner.

            Ms. Palika Monga, AAG, Haryana,
            for respondents No. 1 and 2.

            Mr. Arun Walia, Advocate,
            for respondent Nos. 3 and 4.

            Mr. B.R. Gupta, Advocate,
            for respondent No. 5.

1.    Whether Reporters of local papers may be            Yes
      allowed to see the judgment?

2.    To be referred to the Reporters or not?             Yes

3.    Whether the judgment should be reported in          Yes
      the Digest?


M.M. KUMAR, J.

1. The instant petition is directed against the notification

bearing No. LAC(P)-NTLA-99/1181, dated 16.3.1999, issued under

Section 4 and declaration bearing No. LAC(P)-NTLA-2000/1593,
C.W.P. No. 11945 of 2008 2

dated 15.3.2000 made under Section 6 (Annexures P-3 & P-5) of the

Land Acquisition Act, 1894 (for brevity, ‘the Act’). The public

purpose of acquisition is the development and utilisation of land for

residential, commercial, institutional and recreational purposes in

Sector 1, 2, 3, 5B, 5C and 6, Panchkula Extension (Mansa Devi

Complex) under the Haryana Urban Development Authority Act,

1977 by the Haryana Urban Development Authority, in the area

falling in the revenue estates of village Saketri (Hadbast No. 376) and

Bhainsa Tibba (Hadbast No. 377), Tehsil and District Panchkula.

2. Brief facts of the case are that the petitioner was owner

of land measuring 3 Kanals 0 Marlas, situated in Khewat/Khatoni No.

244/370, Khasra No. 69//32/3, as per jamabandi for the year 1985-86

and mutation bearing No. 1381 was entered in her favour. The land

continued to be in her name in the revenue record as is evident from

jamabandi for the year 2000-2001 (P-1). There was a garden on the

land in question and it has been recorded as ‘bagh barani’ in the

revenue record (P-2).

3. On 16.3.1999, a notification under Section 4 of the Act

was issued, which included the land of the petitioner (P-3). It is

claimed that objections under Section 5-A of the Act were filed and

request was made for release of the land on the ground that there was

a garden and some construction was also raised before Section 4

notification (P-4). However, on 15.3.2000, declaration under Section

6 of the Act was issued acquiring the land belonging to the petitioner

and other land owners (P-5). However, the petitioner continued

making representations for release of the land [P-6 (Colly)]. On

1.7.2003, a notice was issued to the petitioner by the Land
C.W.P. No. 11945 of 2008 3

Acquisition Collector calling her to appear on 14.7.2003 (P-7). The

award was announced on 9.10.2003. In para 8 of the petition she has

averred that land belonging to the influential persons has been

released even after announcement of award dated 9.10.2003. In this

regard it has been alleged that the land of one Maharaja, who was

having one garden as well as the land falling under Khasra No.

59//5/2 Min, 6 Min, 15/1/1 Min, 60//1 Min, 10/2 Min, total measuring

9 Kanals 10 Marlas, belonging to one Shri R.S. Malik, has been

released vide Memo. No. S-2-08/2382, dated 3.3.2008 (P-8).

4. On 15.7.2008, when the matter came up for

consideration, learned counsel for the petitioner raised the issue of

discrimination by release of land of Shri R.S. Malik vide order dated

3.3.2008 (P-8) after announcement of award. On his oral request, the

Division Bench permitted impleadment of Shri R.S. Malik as

respondent No. 5, who has since been served and represented by

counsel. Notice was also issued to the respondent State to show

cause as to why order dated 3.3.2008 be not set aside.

5. In the written statement filed on behalf of respondent

Nos. 1 and 2 the stand taken is that there is no legal infirmity in

issuing notification under Section 4 and declaration under Section 6

of the Act and acquisition procedure has been religiously followed. It

has been asserted that the instant petition deserves to be dismissed on

the ground that the same has been filed after announcement of award

dated 9.10.2003. The award in respect of super structures etc. was

also announced on 14.7.2008. The possession of the land was taken

and handed over to the HUDA on the day of award under Section 16

of the Act except the land for which orders of stay, status quo and
C.W.P. No. 11945 of 2008 4

stay dispossession have been passed by any court. The objections

under Section 5-A of the Act filed by the land owners were heard on

1.2.2000 and 28.2.2000 and proper opportunity of hearing was

afforded. Therefore, report by the Land Acquisition Collector with

recommendation was sent to the Government for final decision. The

land which could be adjusted in the plan was left out from acquisition

after considering the objections. It has been disputed that the

petitioner has filed objections under Section 5-A of the Act within the

prescribed period of limitation. It has further been pointed out that

the objections (P-4) which has been placed on record by the petitioner

were filed by the legal heirs of one Rehamdeen son of Rulia in

respect of Khasra No. 107//2/2 and the petitioner has claimed

ownership of Khasra No. 69//32/3, therefore, the aforementioned

objections have no relevancy with the present case. Regarding

release of land out of acquisition it has been submitted that the

Government is competent to release the land. In that regard, reliance

has been placed on the judgment of Hon’ble the Supreme Court in the

case of M/s Anand Buttons v. State of Haryana, AIR 2005 SC 565.

With regard to release of land belonging to Shri R.S. Malik-

respondent No. 5 and the Maharaja, it has been stated that the same

was released at the Government level. However, fresh notifications

under Sections 4 and 6, dated 16.5.2007 and 27.3.2008 respectively,

have been issued to acquire the same.

6. In the written statement filed on behalf of Shri R.S.

Malik-respondent No. 5 it has been claimed that on the land in

question school and residential buildings were constructed in the year

1979 and 1990 after sanctioning of the building plans by the
C.W.P. No. 11945 of 2008 5

concerned authorities of the respondent State. It has been further

submitted that his land was sought to be acquired due to his personal

grievances with former Chief Minister, Haryana Late Shri Bansi Lal.

In that regard, respondent No. 5 has placed on record certain news

items as Annexures R-5/1 to R-5/5. Respondent No. 5 also pointed

out that in the year 1981 also his land was sought to be acquired by

the respondent State but ultimately the same was released in the year

1984 on account of the fact that a farmhouse was constructed on the

land since the year 1979 by his father, namely, Late Shri Des Raj,

with prior approval of the State Government.

7. In sub-para (iii) of para 3 of the written statement

respondent No. 5 has stated that in CWP No. 12218 of 2003 the

respondents have defended the acquisition of the school land and

building on a false ground that the land fall within 100 metre wide

non-buildable zone along the railway line and the land was required

for expansion of railway track and also by the Mansa Devi Shrine

Board for mela parking during Navratras days. However, when

information was sought by him, the Railways and Shrine Board have

denied that the land was required by them.

8. Respondent No. 5 has also claimed that the Land

Acquisition Collector has rejected the recommendation and report of

the District Town Planner, dated 22.9.2003, which was to the effect

that the buildings were constructed by the family members of

respondent No. 5 with prior approval of the State Government and the

vacant land is fully covered by the green trees and site is not suitable

for mela parking or any other public purpose. In 2000, affiliation was

also granted by the CBSE to the school and Haryana Government has
C.W.P. No. 11945 of 2008 6

also given recognition to the School as Senior Secondary School

w.e.f. 1.1.2005. At present about 950 boys and girls are studying in

the school. There is no other English medium school in the near

vicinity of village Bhainsa Tibba, village Sketri or in the Mansa Devi

Complex to meet the educational requirement of about 20,000

residents.

9. While admitting abuse of statutory powers by the

officials of the State Government in acquiring and releasing lands and

buildings, it has also been pointed out that the respondent State has

left out about 20 acres of land of Shri Shyam Sunder, Liquor

Contractor and Coloniser adjacent to the Valey Public School in

Village Bhainsa Tibba, whereon several showrooms and residential

houses were constructed in 1986-90 without any approval of the

competent authority.

10. Regarding release of about 5 acres of land falling under

buildings and school after announcement of award, respondent No. 5

has stated that on his representations, the Chief Secretary, Haryana,

after detailed discussions with the concerned authorities made a

recommendation on 13.4.2007 regarding release of land (R-5/13).

Later on even the State Government framed a policy dated

26.10.2007 for release of notified lands (R-5/14). On 29.12.2007,

respondent No. 5 submitted another representation to the

Commissioner, Urban Estates and the Chief Minister for passing final

order on the report of the Chief Secretary, dated 13.4.2007 (R-5/16).

The respondent State finally approve the recommendations of the

Chief Secretary vide order dated 5.1.2008, subject to the condition

that he would withdraw all cases/representations pending before
C.W.P. No. 11945 of 2008 7

various Courts/Government and surrender his claim to the other land

except the part of the land being released. Ultimately, land measuring

9 Kanals 10 marls was released vide order dated 3.3.2008 on which

school and two farmhouse buildings have been constructed since

1979 and 1990.

11. After hearing learned counsel for the parties at a

considerable length and perusing the paper book with their able

assistance, we are of the considered view that there is no merit in the

instant petition and the same is liable to be dismissed. The principal

question which arises for determination is whether there is any scope

for issuing direction to the respondents to de-notify the land from

acquisition after the award has been announced and possession has

been taken. The aforementioned question is not res integra. Hon’ble

the Supreme Court has considered the aforementioned question in the

case of Rajasthan Housing Board v. Shri Kishan, (1993) 2 SCC

84. Apart from answering various other questions in connected

matter decided, the question in issue raised before us was answered in

Writ Petition (C) No. 290 of 1989. After noticing the correspondence

between the Urban Development and Housing Department of

Rajasthan Government and Rajasthan Housing Board, their

Lordships’ proceeded to answer the question in para 26 of the

judgment, which reads thus:-

“26. We are of the further opinion that in any event the

Government could not have withdrawn from the

acquisition under Section 48 of the Act inasmuch as the

Government had taken possession of the land. Once the

possession of the land is taken it is not open to the
C.W.P. No. 11945 of 2008 8

Government to withdraw from the acquisition. The very

letter dated February 24, 1990 relied upon by the counsel

for the petitioner recites that “before restoring the

possession to the society the amount of development

charges will have to be returned back …”. This shows

clearly that possession was taken over by the Housing

Board. Indeed the very tenor of the letter is, asking the

Housing Board as to what development work they had

carried out on the land and how much expenditure they

had incurred thereon, which could not have been done

unless the Board was in possession of the land. The

Housing Board was asked to send the full particulars of

the expenditure and not to carry on any further

development works on that land. Reading the letter as a

whole, it cannot but be said that the possession of the

land was taken by the Government and was also

delivered to the Housing Board. Since the possession of

the land was taken, there could be no question of

withdrawing from the acquisition under Section 48 of the

Land Acquisition Act, 1894.” (emphasis added)

12. Again in the case of Mandir Shree Sita Ramji v. Land

Acquisition Collector, (2005) 6 SCC 745, the provisions of Section

48 of the Act fell for consideration of Hon’ble the Supreme Court and

in passing remark, it was observed that once possession is taken the

Government cannot withdraw from acquisition under Section 48 and

the contrary contention raised in that regard was rejected.
C.W.P. No. 11945 of 2008 9

13. Another opportunity to consider the same very question

arose before Hon’ble the Supreme Court in the case of P.K. Kalburqi

v. State of Karnataka, (2005) 12 SCC 489. The specific question

raised was whether the Government was justified in releasing a

portion of land from acquisition. A cognate question was also

decided, namely, what is the meaning of taking possession. In other

words, whether it is actual or symbolic possession. Answering the

first question, it was held that once the possession is taken then there

is no room for the Government to release the land from acquisition by

de-notifying the same. In respect of the second question, it was

observed that if the land is plain then symbolic possession itself

would be sufficient by making entry in the revenue record.

14. Moreover, in the case of Gurkirpal Singh v. Financial

Commissioner (Revenue) and Secretary, Government of Punjab,

Department of Revenue and others (C.W.P. No. 10511 of 2007,

decided on 9.5.2008) the question as to whether the acquired land

could be de-notified after the award and proceed after taking of`

possession under Section 16 of the Act, also came up for

consideration before a Division Bench of this Court of which one of

use (M.M. Kumar, J.) was a member. The challenge in the said

petition was to a notification dated 23.2.2007 whereby the earlier

notifications issued under Section 4 and 6 of the Act were de-notified

by the State Government. The Division Bench after referring to the

provisions of Section 48 of the Act discussed a catena of judgments

in detail and came to the conclusion that once the possession has been

taken there is no possibility of the respondent State to de-notify the

acquisition. After placing reliance on the judgments of Hon’ble the
C.W.P. No. 11945 of 2008 10

Supreme Court in the case of Balmokand Khatri Educational and

Industrial Trust, Amritsar v. State of Punjab, (1996) 4 SCC 212

and Balwant Narayan Bhagde v. M.D. Bhagwat, AIR 1975 SC

1767, the Division Bench also rejected the argument that physical

possession of the land remained with the petitioner and it has been

held that usual mode of taking possession by the Government is by

making entry in the Rapat Roznamcha immediately after

announcement of award. In somewhat similar circumstances, we

have also dismissed C.W.P. No. 687 of 2008 (Smt. Asha Malik and

another v. State of Haryana and others) vide order dated

2.12.2008.

15. We repeatedly asked Mr. Babbar Bhan, learned counsel

for the petitioner as to how a direction for release of land acquired in

1999-2000 could be issued after the award has been announced and

possession of the land is taken, he has not been able to cite any

contrary law or give answer to our query.

16. Even otherwise it is well settled that no writ petition

would be competent after passing of award because possession of

land was taken and it is deemed to be vested in the State Government.

In that regard reliance has rightly been placed by respondent Nos. 1

and 2 on the judgments of Hon’ble the Supreme Court rendered in the

cases of Star Wire (India) Ltd. v. State of Haryana, (1996) 11 SCC

698; Municipal Council Ahmednagar v. Shah Hyder Beig, (2000)

2 SCC 48; C. Padma v. Dy. Secretary to the Government of Tamil

Nadu, (1997) 2 SCC 627; and M/s Swaika Properties Pvt. Ltd. v.

State of Rajasthan, JT 2008 (2) SC 280. In the instant case it is

conceded position that award was announced on 9.10.2003 and the
C.W.P. No. 11945 of 2008 11

writ petition has been filed on 14.7.2008 i.e. after more than 4½

years.

17. A close scrutiny of various orders passed by this Court

shows that respondent no. 5 was put on notice in respect of order

dated 3.3.2008 releasing his land after award and possession. In that

regard reference may be made to the interlocutory order dated

15.7.2008. It was thereafter that respondent No. 5 has filed a separate

detailed written statement to defend order dated 3.3.2008.

18. During the course of hearing we repeatedly posed a

question to Mr. B.R. Gupta, learned counsel for respondent No. 5 that

once the award has been announced and possession of the land has

been taken then how can the power under Section 48 of the Act could

be exercised. Mr. Gupta has not been able to answer the

aforementioned query except stating that the State Government has

exercised its discretion and even policy has been framed on

26.10.2007 (R-5/14). The petitioner has not been able to substantiate

the allegation concerning release of land of ‘Maharaja’ after award.

There is nothing on record to that effect.

19. At this stage it would be apposite to take notice of clause

1 and 2 of the policy dated 26.10.2007 (R-5/14), which reads thus:-

“1) No request will be considered after one year of

award. Only those requests will be considered by

the Government where objections under section 5-

A were filed.

2) Any request for application where structures have

been constructed will only be considered for the
C.W.P. No. 11945 of 2008 12

release under section 48(1) provided the structure

exists prior to section 4 and is inhabited.

3) to 6) xxx xxx xxx xxx

Provided that the Government may release any

land on the grounds other than stated above under

section 48(1) of the Act under exceptionally justifiable

circumstances for reasons to be recorded in writing.”

20. A perusal of the aforementioned clauses of the policy

would show that it is impregnated with the illegality, inasmuch as, it

arms the Government with the power to release land from acquisition

within one year after the award. In other words, the award could be

passed without taking possession of the land for one year. This is

factually against the ground realities because on the day of

announcement of award possession of the land is ordinarily taken. In

the present case also it remains undisputed that the award was

announced on 9.10.2003 and the possession of the acquired land was

handed over to HUDA-respondent Nos. 3 and 4 on 9.10.2003 itself.

The factual position is evident from para 1 of the preliminary

objections of the written statement filed by HUDA-respondent Nos. 3

and 4. Therefore, there would be rare possibility of announcing an

award without taking possession. It could only be where court has

passed interim order which is not the position in this case. Therefore,

we have not been able to persuade ourselves to approve clause 1 of

the policy, which provide for entertaining of an application within

one year after announcement of award. The power is also being

misused by releasing that land in respect of which award has been
C.W.P. No. 11945 of 2008 13

announced and possession has been taken as is evident in the present

case.

21. We are further of the view that power to release land

from acquisition before the stage of issuing declaration under Section

6 of the Act should not be the rule but only an exception and power

under Section 48(1) should be used sparingly. By doing so law and

life would be on talking terms otherwise they would be distant

neighbours. But it all depends on the machinery of the State which

must be geared to achieve maximum welfare of its citizens. In a large

number of cases which have come up for hearing before us, no survey

is carried out before issuing notification under Section 4 of the Act,

which result into extreme harassment to the general public who have

constructed their houses, factories or other buildings before issuance

of notification under Section 4 of the Act. The respondent State of

Haryana is pursuing the policy of excluding the constructed area built

before issuance of notification under Section 4 as is evident from

clause 2 of the policy dated 26.10.1997 (R-5/14), which has been

extracted in para 19. To achieve that object the Land Acquisition

Collector or any other officers of the Town and Country Planning

Department etc. should be under an obligation to first undertake a

detailed survey of the site for which notification under Section 4 is

proposed to be issued. A notification under Section 4 of the Act

should be issued by excluding the constructed area as per the policy,

which would avoid unnecessary harassment to the general public. A

notification under Section 4 is required to be prepared by including

only that area, building or construction which are absolutely

necessary for executing the public purpose. It has been seen in a
C.W.P. No. 11945 of 2008 14

large number of cases that notification under Section 4 of the Act is

issued for acquisition of say 500 acres of land and by the time

declaration under Section 6 of the Act is published, only 100 acres of

land is intended to be acquired. It shows wanton disregard of clause

2 of the policy of the Government, dated 26.10.2007 (R-5/14). It

appears that without any regard to the policy of the Government,

notifications under Section 4 of the Act at ease are being issued by

including large area with construction and then such areas are

excluded from acquisition by not including the same in the

declaration issued under Section 6 of the Act. This leads to

flourishing of Babudom, illegal activities and exploitation of the

general public because their houses/hutments come under the threat

of being acquired after issuance of notification under Section 4 of the

Act. Therefore, necessary directions in that regard are required to be

issued.

22. As a sequel to the above discussion, we pass the

following directions:

a) The writ petition filed by the petitioner is hereby

dismissed;

b) Order dated 3.3.2008 (P-8) releasing the land belonging

to respondent No. 5, measuring 9 Kanals 10 marlas,

comprised in Khasra No. 59//5/2 Min, 6 Min, 15/1/1

Min, 60//1 Min, 10/1 Min, is also hereby quashed;

c) Clause 1 of the policy instructions dated 26.10.2007

(R-5/14) is declared illegal; and

d) The respondent State of Haryana is directed to issue

comprehensive instructions to all the Land Acquisition
C.W.P. No. 11945 of 2008 15

Collectors of the State, Officers of the Town and

Country Planning Department, various agencies like

HUDA, HSIIDC or others to undertake a comprehensive

survey before sending the proposal to the Government

for issuance of notifications under Section 4 of the Act.

The concerned officers are to ensure that clause 2 of the

policy of the State, dated 26.10.2007 for releasing the

structures, which have been built up prior to issuance of

notification under Section 4 of the Act are not included

in the proposal for acquisition. Such instructions would

bring proximity between law, life and justice which look

to be distant neighbours in the present scenario. It would

avoid unnecessary harassment to the general public who

might have constructed small houses on the land

proposed to be acquired. It would also discourage the

construction activity after issuance of notification under

Section 4 of the Act or the tendency of some

unscrupulous element to claim that the building was

constructed prior to issuance of notification under

Section 4 of the Act. These steps in turn would reduce

the disputes between the general public and the State

paving the way for developing peaceful society and

avoiding litigation.

23. The needful shall be done within a period of two months

and a compliance report in that regard be placed on record on or

before 2.3.2009.

C.W.P. No. 11945 of 2008 16

24. A copy of this order be given to Ms. Palika Monga,

Assistant Advocate General, Haryana for onward transmission to the

Chief Secretary, Haryana.



                                          (M.M. KUMAR)
                                             JUDGE



                                          (JORA SINGH)
December 10, 2008                            JUDGE
Pkapoor